The solid interpretation more critical if good excuse two can throw (3)

Authors: Fang Kunpeng

(three) USA founding constitution to define a conversion of 3/5 black

The Supreme Court has such significant errors in Plessy case, is by no means accidental confused. I'll introduce 39 years and 31 years later the two supreme court case earlier than the case, can be clearly seen America Supreme Court during that long period of time, be consistent from beginning to end racism standpoint.

39 years earlier than the Plessy case, is America 1857 Supreme Court decision Scott v. Sanford (Scott v. Sandford), referred to as the Scott case. In this case, serious damage to the American Supreme Court's prestige, become more America Civil War (War of North and South 1861-1865) one of the key reasons.

In the Scott case in the southern states, USA is a slave state legal, while other areas, slavery was abolished, called free or free state. When the state of Missouri is still a slave state to legalise, Dred Scott (Dred Scott) is a slave, his master was a surgeon. During the period from 1834 to 1838, the master was sent to the free state troops, Scott followed the master from Missouri to the free State Army lived 4 years. In 1838, Scott followed the master returned to Missouri. 1843 master's death, Scott became the owner of the property.

In 1846, the abolitionist group's help, Scott sued his new master, seeking to free men for himself, his wife and two daughters identity. Scott's lawyers had argued that, Scott and his family are free to live for 4 years, because these areas prohibited slavery, so they lived there is the identity of the free man, not a slave. Since Missouri had "slave once free, always free" case, in accordance with the provisions of stare decisis, they returned to Missouri, should remain a free man. In addition, because of which a daughter was born in a free, lawyers gave her enhanced a "born" principle, that she is born free.

The trial judge made in favor of the Scott verdict, sentenced Scott and his family as a free man. However, Scott case of the other party to appeal, calling for the overthrow of the judgment. The appeal was allowed, overturned the lower court decision, handed Scott a slave. So it was Scott's turn to appeal.

So after a few rounds of lengthy litigation, in 1856 February, Scott appeal to the Supreme court. At that time the tense situation, the case became an important political cases a national attention. The Supreme Court until second years March decision, the 9 judges voted 7 to 2 vote majority decision, rejected Scott's appeal, the Missouri Supreme Court for judgment on Scott a slave.

The Supreme Court Chief Justice Roger Tanni (Roger Taney) wrote opinions. The opinions now looks like is fantastic, I translate two paragraphs as sample, and attached to the original english:

"A free person status Africa for blacks, whose ancestors were as slaves were sold to the state, in accordance with the constitution of the United States of the spirit, the black is not a 'citizen'." (A free Negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.) was born in the black America age, their ancestors are from the slave trade, the Supreme Court is announced, American all black people are not USA citizens, their offspring will never become a citizen.

"The constitution was passed, they (the black)...... Not to be counted as' people or citizen'." (When the Constitution was adopted, they...... Were not numbered among its "people or citizens."). That is, America the Constitution did not keep black people as American citizens, don't treat them as people. It now sounds incredible, but the chief justice of the Supreme Court actually say is the truth.

Often see people praised America constitution stability, said American founding constitution was founded more than 200 years are still in use, a word has not changed. Compared with the Chinese, America constitution is relatively stable, but praise "word has not changed, still in use" is ignorance and fear. The American constitution indeed has a did not change, but some of them have been subsequent amendments to the constitution covers. If the founding constitution intact and still all effective, USA women may now also do not have the right to vote, American black is improper, but a black conversion for 3/5 people.

USA founding constitution as the American and the world provides a mode of constitutional government, its important historical position should be affirmed. But the classical law of constitutional democracy, to give legal status of slavery is a historical fact, not repellent. But the framers clearly know that slavery is ugly, the mention of "slave" or "black" places in need, mining Qubi way, by "servitude", "service" this kind of obscure name ghostwriter, so the body can not see the "slave" or "black" this the word. In this part the founding constitution, slaves are not as a person, but the North requires use of "taxation population tax" to the "slave property", while the South wants to increase according to population distribution of the Congress, namely, strengthen their national institutions in the preparation of the right to speak. The final compromise, in the constitution, a black converted 3/5 people (see paragraph second of the first constitutional), convenient for taxation and distribution of Congress delegates, but for conversion with black itself without the right to vote.

Similarly, the constitution is not speak in detail about women the right to vote. These problems later added an amendment to the Constitution by the corrected. Americans admire the founding constitution almost pedantic point, so that the correct the problem is also obscure obscure way. A constitutional amendment method and definition is different from the constitutional text, what but not specified in the constitution of the text was abolished or replaced, no "as with previous conflict clause, this clause shall prevail" such description language. So technically, USA constitution (constitution text and Amendment) conflict exists in terms of.

Know the background, can not be the American judicial system leader chief judge Roger Tanni, in the Scott case verdict in some shock the common customs remarks by the stun, as shown in this section:

"For more than a century, they (the black) has been regarded as inferior creatures, both in social or political relations, totally unworthy with white people on an equal footing. Because they are so poor that they can't enjoy those rights, white people generally respect. The nigger of legitimate and just as slaves, may be a benefit to them." (They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the Negro might justly and lawfully be reduced to slavery for his benefit.)

Roger Tanni wrote this judgment, as chief justice of the Supreme Court leadership USA for over 20 years, is a highly USA people respect the judicial authority, the Supreme Court under his leadership prestige unprecedented. Scott case, everything changed. The Supreme Court through this case to the constitutional explanation, the extreme intensification of the contradiction between the north and the south, the slave owners in the South and the north of the judgment to applaud, state officials and the court against the provisions of this decision, causing serious constitutional crisis, the American civil war becomes inevitable. Tenny judge himself is mighty storm like criticism and curse, the Supreme Court has been completely discredited.

Interestingly, the nine judges of the Supreme Court in this case is also a riot of colours. Although the ratio of 7 to 2 to reject the Scott appeal the decision, but to agree or disagree with this decision reason are different, the result of each of the justices wrote a Book of my own views, so that the case has a total of 9 submissions, can be called a must. Submissions Tenny chief justice was written on behalf of the Supreme Court ruling, legally binding, the country should follow; submissions the remaining 8 justices wrote called incidental comments or objections, as judgment attachment, is not binding, use for reference. All the opinions of the Supreme Court of the USA published according to the time sequence assembly, Scott opinion into "America casebook" volume sixtieth. "American casebook" for America Supreme Court case, this volume includes 60 case, I am curious to compare opinions, found the book rest 59 cases accounted for a total of 392 pages, the average case for 6.6 pages, and the opinion of Scott case in this volume have a whole 240 page!

The two judges dissenting believe that, although the Constitution did not give the Negro citizenship, but there is no rule not to give black citizenship. In other words, according to their argument, approved Scott's appeal to his family, freedom and citizenship does not violate the constitution, the trial judge that sentenced. Here again highlights the important constitution: solid, more critical interpretation.

To revoke or there are two ways to overthrow the American Supreme Court decisions. A self initiated by the Supreme Court, all justices voted to overturn a decision before, if the majority agree to overturn, the Supreme Court will announce to revoke the decision. Another is the Congress through the extremely difficult procedure of constitutional amendment, the overthrow of the Supreme Court's ruling by constitutional amendment method. Historically, the two methods are rarely used. This latter approach is very interesting, showing superb design power restrict each other. Without the right of interpretation of constituent institutions, if you are not satisfied with the judge's interpretation, can be re enacted a new constitution (Amendment) to counter your explanation, but the constitution or constitutional threshold is very high, can not be easily enabled.

America Supreme Court never announced that the Scott decision, decision on the Scott case is correct, through amending the constitution to. After the civil war ended in 1865, Congress enacted the Thirteenth Amendment of the constitution, prohibiting slavery; in 1868 and developed the Fourteenth Amendment of the constitution, given the Negro citizenship. The two amendment is in fact overturned the decision of the Supreme Court case of Scott. However, other aspects, such as the opinions of discrimination against blacks in extreme racist comments did not see the Supreme Court to recover, technically speaking these words is still legal, but now I'm afraid no one dares to venture to refer to the "law".

(to be continued)